On 2 February 2017, Fayez al Serraj for the Libyan Government of National Accord and Paolo Gentiloni for the Italian Government signed a Memorandum of Understanding, with the aim of strengthening the cooperation in the management of the Libyan borders, “in order to ensure the reduction of illegal migratory flows”.
The Memorandum is political in nature and places burdens on public finances, but, in breach of Article 80 of the Italian Constitution, it was not subject to a prior law of authorization for the ratification by the Parliament. Therefore, four members of the Parliament lodged an appeal with the Constitutional Court so that a conflict of attribution between the Parliament and the Government would be raised. [1]
The same Memorandum provides for a three-year period of validity and its tacit renewal upon expiry – on 2 February 2020 – for an equivalent period, unless one of the Parties agrees otherwise, with an opposition to be expressed at least three months in advance.
On 2 November 2019, therefore, civil society organisations requested [2] the annulment of the agreement. On the contrary, the Italian Government never asked the Government of Tripoli to annul the memorandum. Therefore, on 6 November 2019 the Minister of Internal Affairs Mrs. Lamorgese, confirming the validity of the agreement, talked about a bilateral will to review certain aspects of the agreement.
To date, however, the extent and scope of the proposed amendments as well as, more in general, whether proposals of intervention on the text of the Memorandum have actually been presented or discussed, are unknown.
After three years from the subscription of the text, it is possible to assess the effects of its application and the resources spent, which can be classified in 2 areas:
1) Cooperation in the management of flows of irregular foreign citizens (art.1)
There are no irregular and regular migrants in Libya, but all foreign citizens are charged with illegal entry, stay or exit from the country, which is punished by general and indefinite imprisonment. Indeed, Libya has not a law on asylum, it has not ratified the Geneva Convention relating to the Status of Refugees of 1951 and it has not formally recognised the United Nations High Commissioner for Refugees (UNHCR) [3]. Foreign citizens, also in vulnerable conditions, including survivors of trafficking in human beings or refugees, may be systematically subject to indefinite imprisonment. Within the detention centres, prisoners are subject to all kinds of abuse.
For its part, Italy, without imposing any conditions on the Libyan authorities with regard to the respect of human rights and without demanding any commitment to that effect, in compliance with the obligations arising from the Memorandum related to cooperation in the management of controls and borders, has provided Libya with ten CP naval units [4], two 27-metre Corubbia class vessels [5] and two Bigliani class patrol boats [6]; it has financed the restoration of four patrol boats [7]; it has ensured the presence of the Caprera ship moored in the port of Tripoli which coordinates the Coast Guard to carry out interceptions at sea [8]; it has provided equipment, training, technical and technological assistance [9].
Also thanks to these interventions, the European Commission has been able to declare a drop in the number of departures from Libya of 90%. [10]
Nevertheless, as highlighted in the very recent statement of the Commissioner for Human Rights of the Council of Europe [11], these figures only indicate that the cooperation with Libyan authorities has helped to bring back to Libya and to block on the Libyan territory thousands of migrants and that, therefore, the Memorandum contributes to exposing them to very serious violations of fundamental human rights.
2) Improvement of detention centres, through the funding of international and non-governmental organisations, increase in voluntary repatriation (art. 2)
The centres where migrants are taken after being intercepted at sea by the so-called Libyan Coast Guard, are places of detention formally under the management and supervision of the Ministry of Internal Affairs, where foreign citizens (without any distinction) are held for an indefinite period of time in conditions of very serious physical and psychological prostration [12].
In this situation, international and non-governmental organizations have received since 2017, through the Africa Fund and the EU Trust Fund, resources to operate within the centres in order to make an improvement of detention conditions [13].
Among the activities provided under the Memorandum to be implemented in favour of detained persons, voluntary repatriation is also included: in fact, thanks to assisted repatriations of IOM, 8536 persons have already been repatriated through the VHR programme financed by the Italian Ministry of Foreign Affairs [14]. In this context, the voluntary and free nature of the consent given to return has been questioned on a number of times, so that the same Representative for Torture and Other Cruel and Inhuman Treatment or Punishment has drawn the attention to such measures, pointing out that detention, when based solely on the condition of the migrant, can also be used to force the withdrawal of the request for asylum or accept voluntary return [15]. These statements are all the more relevant when one considers that IOM, through the resources of the Italian Ministry of Foreign Affairs, has repatriated 126 persons to Somalia, 26 to Eritrea, and 2486 to Nigeria, without making sure that there were no refugees or victims of trafficking among them [16].
The escalation of the armed conflict is contributing to a situation totally out of control and of extreme danger for those who are in Libya, so that on 30 January the UNHCR announced that it had closed and abandoned the centre of the Tax Police [17] where refugees were hosted before being transferred to Niger, Rwanda or third countries [18] because of the excessively high risk to which the officials employed there were subject.
The situation is such that it can be said that the humanitarian activity financed through the Memorandum, while having a positive short-term impact on the life of the beneficiaries, is absolutely unsuitable to affect the situation in the detention centres and to make a real improvement.
On the contrary, the presence of International Organizations inside detention centres, where people are systematically subjected to all forms of torture, might create ambiguities that jeopardize the success of the humanitarian activity itself.
Despite this context, as from November to date, there have been a number of hypotheses and proposals to amend the memorandum. Among these, there is the Minister of Foreign Affairs Mr. di Maio who received the proposal from IOM and UNHCR to manage the detention centres [19] and on 30 January 2020 he confirmed that the Government is moving towards the amendment of the agreements for the closure of the detention centres and that the evacuation of migrants must be proceeded [20].
In light of these statements, ASGI reiterates that:
1. The strengthening of Libyan authorities through Italian and European funding is contrary to national and EU rules. The interventions for the equipment, technical support and cooperation in the management of borders, both for the practical modalities according to which it has been set up and for the subjects to whom it is addressed, ends up strengthening practices and policies for the control of migration flows which are contrary to fundamental rights, as they are in support of Libyan authorities which have committed and continue to commit very serious crimes against migrants and refugees in complete disregard of the legislation on fundamental human rights and the right of asylum in blatant breach of Article 3 of the European Convention on Human Rights, by strengthening, on the contrary, authorities that commit serious international crimes.
2. Through its support to the Libyan Coast Guard, the Italian Government is seeking for immunity from heavy legal liability. As the SS vs. Italy case [21] before the ECHR is trying to affirm, the delegation to Libyan authorities of the conduct of rescue operations at sea through the provision of logistical support, does not exempt the Italian State from responsibility for the so-called refoulement by proxy and for the violation of rescue obligations, where it systematically refuses to take over the coordination of rescue operations leaving them to Libyan authorities, which either do not intervene or take the migrants back to the detention centres on land where their rights are violated.
3. The intervention of International Organizations and Non-Governmental Organizations can no longer be instrumentalized by the European Union and Member States to continue to support Libyan authorities in the management of the blocking of flows in the light of the apparent improvement in the conditions of the detention centres. The conditions inside the detention centres, despite the humanitarian interventions carried out, are still characterised by a very high level of violence. The indiscriminate use of detention in Libya, as a consequence of European border externalisation policies, entails serious human rights violations and prevents the exercise of the right to asylum.
4. The closure of detention centres cannot be replaced by the creation of centres managed by IOM and UNHCR. On the contrary, migrants must be able to easily reach, in safety, the countries of the European Union where they can apply for asylum or be admitted to other forms of protection where possible.
For these reasons ASGI asks the Italian Government:
- The immediate annulment or at least the unilateral suspension for an indefinite period of time of the so-called Memorandum of Understanding with Libya of 2017 with which Italy has financed, equipped and trained the so-called Libyan Coast Guard in order to block foreign people fleeing to Europe and then imprison them in Libyan detention centres;
- The immediate interruption of all forms of collaboration with the so-called Libyan authorities in the context of interception or rescue operations of migrants at sea;
- The immediate interruption of all activities in support of the system of detention centres for migrants in Libya;
- The overcoming of the Italian and European policies of outsourcing the right of asylum and borders promoted also through international agreements with third countries, which are provided with funds, technological and military equipment and political legitimacy in exchange for a control – often violent and indiscriminate – of their borders;
- Immediate evacuation of all foreigners seeking protection outside Libya to safe locations preferably in Europe;
- The creation of legal and secure ways of access the European territory through a better regulation of migration flows, recognizing the freedom of movement not only as an effective tool in the fight against smuggling of migrants but above all as a resource both for human beings, for individual states and for international relations, and as an essential prerequisite for a fairer distribution of rights and opportunities;
- To subject any international agreement with Libya – as it is political in nature and entails burdens on public finance – to the prior law authorising ratification pursuant to Article 80 of the Italian Constitution, in the absence of which ASGI reserves the right to report the circumstance to the Italian Court of Auditors (Corte dei Conti) for the purposes of the preliminary assessments on the legality of the Government’s acts and to the Public Prosecutor’s Office of the Court of Auditors for tax damage against any act of expenditure implementing an international agreement signed in breach of Article 80 of the Constitution.
[3] For further information see UNISMIL 2018 report
[4] The equipment provided, which may also be used for military purposes, could also fall within the restrictions imposed by the UN Security Council on the export of arms and other material to Libya. Resolution 2420 extends the embargo up to 2020.
[5] The transfer of the vessels was authorised by Law Decree no. 84/2018 and then they were delivered after a few months to the Libyan Coast Guard
[6] See the Dossier of the Study Service of the Chamber of Deputies – La partecipazione italiana alle missioni in Libia – 30 May 2019
[7] The financing was ordered by decree 4110/47 of the Ministry of Foreign Affairs and ASGI has challenged the decree. The proceedings is still pending before the Council of State.
[8] See Il “grande inganno” della Libia sicura e le tappe della “regia” italiana dei respingimenti delegati
[9] The Italian Ministry of Internal Affairs has received two grants from the EU Trust Fund for a total of €89 million to support Libyan authorities in the activity of borders management.
[10] In addition, the UN indicates that the EU’s strategy of delegating responsibility for search and rescue operations to the Libyan Coast Guard, together with the attacks on humanitarian relief vessels, have contributed to making the Mediterranean route the most dangerous in the world. See Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya
[11] The post by the Commissioner for Human Rights of the Council of Europe Mrs. Dunja Mijatović on the Italy-Libya Memorandum of Understanding, which will be automatically renewed on 2 February 2020
[12] The Prosecutor at the International Criminal Court has announced that an investigation into the crimes committed on the Libyan territory will soon be launched
[13] For more information on the lack of transparency on the use of funds by international organizations, please refer to the ASGI’s study
[14] Data provided by the Ministry of Foreign Affairs through civic access in November 2019 that refer to the period from 1 September 2019 to May 2019
[15] Human Rights Council, Report on the Special Rapporteur on Torture and other Cruel, Inhuman, Degrading Treatment or Punishment, A/HRC/37/50, 28 February 2018
[18] For more information on ETM and Resettlement
[19] ASGI asked the Ministry of Foreign Affairs to have access to the program. For further information
[20] See Il futuro della Libia è nel giungere a un buon accordo[21] Respingimenti in Libia : il dossier e il video della conferenza stampa sul ricorso alla CEDU
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